In this article we will explore the various halachic versions of the principle of “הנח להם לישראל” – “allow Israel to do as they will,” and see how each has been used by the Gemara and Rishonim. At the same time, we will examine whether this principle may be used in any form to explain or defend the common minhag not to be makpid (careful) to observe the laws of chadash outside of Eretz Yisrael.
The Torah forbids the consumption of chadash, or new grain, which is defined as grain that took root after the sixteenth of Nissan, until the omer sacrifice is brought on the sixteenth of Nissan of the following year. After the destruction of the Temple, Rabban Yochanan ben Zakkai ruled that the entire day that the omer would have been offered is off-limits for eating chadash, meaning that one is permitted to eat from the new grain only from the seventeenth of Nissan.
There is a dispute between the Sages whether the prohibition of chadash applies outside of Eretz Yisrael as well. According to four Tanna’im, Rabbi Eliezer, Rabbi Shimon, Rabbi Akiva, and Rabbi Yosei, the chadash prohibition is applicable both in and outside of Eretz Yisrael. These Tanna’im derive this rule from the words “בכל מושבותיכם,” “in all your dwelling places,” in the context of chadash, which are interpreted to mean “בכל מקום שאתם יושבים,” “every place where you live”.
Other Tanna’im, such as the tanna kamma,2 Rabbi Yishmael,4 and Rabbi Elazar ben Rabbi Shimon believe that chadash is not de’oraita in countries outside of Eretz Yisrael. In their opinion, the term בכל מושבותיכם teaches us another rule – that chadash only applied in Eretz Yisrael after it was inherited and divided into plots and dwelling areas for each tribe.
The disagreement continues with the Amora’im. Rav’s students ruled like the stricter opinions that chadash also applies outside Eretz Yisrael, with which Ravina also agreed, but Rav Pappa and Rav Huna followed the lenient opinion, claiming that chadash is not de’oraita outside Eretz Yisrael.
The vast majority of Rishonim rule that chadash is applicable outside of Eretz Yisrael mide’oraita, including the Rif, Rambam, and Rosh. The Shulchan Aruch follows suit and codifies the halacha accordingly that chadash indeed applies across the world.
Notwithstanding this clear halachic consensus of opinion, most communities in the times of the Rishonim were lenient and did not observe the laws of chadash outside of Eretz Yisrael. The Rosh notes this and attempts to justify the minhag. The Rema also suggests viewing the minhag in a favorable light, using the phrase, הנח להם לישראל מוטב יהיו שוגגין ואל יהיו” מזידין” – “Leave Israel to do as they will, for it is better that they sin by mistake than on purpose.”
The Meaning of the Phrase הנח להם לישראל
The phrase “הנח להם לישראל,” ”leave Israel to do as they will,” appears in the Talmud Bavli four times, in two different versions. One version, found in the Gemara in Pesachim (66a), states, “הנח להם לישראל אם אינם נביאים בני נביאים הם,” “leave Israel to do as they will, for if they are not prophets, they are the children of prophets.” The other version, found in the Gemara in Beitza (30a), Bava Batra (60b), and Shabbat (148b), states, “הנח להם לישראל מוטב יהיו שוגגין ואל יהיו מזידין” –“Leave Israel to do as they will, for it is better that they sin by mistake than on purpose.” This is the one used by the Rema quoted above.
“They are the Children of Prophets”
Let us explore these two versions of hanach lahem, both of which address seemingly problematic halachic practices, and the differences between them. We can then see whether and how they may apply to the laws of chadash. The first version of “הנח להם” that the Jewish people are “the sons of prophets” seems to be saying that we must assume that if Am Yisrael as a whole choose to perform a certain action, it is probably permitted, and the Meiri claims that “we rely on what they do themselves.”
A somewhat similar assumption that a widespread practice by religious Jews is significant is made a number of times by Chazal using the phrase, “פוק חזי מאי עמא דבר” – “go out and see how the people are acting.” This phrase is occasionally employed when the Sages are indecisive about the halacha, and essentially acknowledges that the actions of the people can help to determine the practical halacha. The Talmud Yerushalmi also quotes a comparable statement by Rabbi Yehoshua ben Levi that “כל הלכה שהיא רופפת בבית דין ואין אתה יודע מה טיבה, צא וראה מה הציבור נוהג, ונהוג – “whenever you see a halacha that seems inconclusive in the beit din and you are not sure of its status, go out and see how the public is acting, and do the same.”
The poskim are split on the nature of this hanach lahem principle. Many understand this statement on a mystical level, based on the assumption that there exists an inner mechanism that protects Am Yisrael as a whole from violating Torah laws. This understanding is supported by the fact that the Jewish people here are called nevi’im and bnei nevi’im, prophets and sons of prophets.
On the other hand, many poskim understand the rule “אם אינם נביאים בני נביאים הם” in a more rational manner: If a large number of religious Jews maintain a particular minhag, one cannot say that they are erring, because if it were entirely forbidden, presumably some rabbinic authorities along the line would have corrected this error. Therefore, if contemporary talmidei chachamim do not understand the basis for the practice, we must nevertheless assume it is based on an earlier minhag or ruling of a local rabbi. This approach is expressed by the Bigdei Yesha, who writes that if the public is seen acting in a way that contradicts halacha, we must say “דלמא יש קבלה בידם” – “Perhaps they have a tradition to act this manner.”
Can this type of hanach lahem apply to the lack of observance of chadash in chutz la’aretz? Does it make sense to say that although the mainstream halachic sources seem to indicate that chadash is forbidden, we should still say hanach lahem and permit it using the assumption that there must be sufficient grounds to allow it? As was discussed in the shiur, there are indeed a number of Rishonim and Acharonim who attempt to defend the widespread minhag (some of these opinions are also mentioned later in the article). Although they do not invoke this principle explicitly, one can argue that their defense of the lenient minhag is in essence applying this form of hanach lahem to chadash. In contrast, the rest of the sources that do not condone ignoring the rules of chadash in the Diaspora would seem to hold that such a defense should not be applied in this situation.
Better To Sin Unintentionally Than Intentionally
The second version of “הנח להם לישראל מוטב יהיו שוגגין ואל יהיו מזידין” appears three times in the Bavli as mentioned above. In Masechet Beitza and Masechet Shabbat, the Gemara derives that when one sees a person who is not keeping a mitzva, either deoraita or derabanan, one should not rebuke him for it, because it is better that the person sin unintentionally than intentionally. The Gemara in Bava Batra uses this phrase when saying that because of the destruction of the Temple and the persecution of the Jews (who were forbidden to perform a brit mila at that time), it is better not to get married and have children, so that Am Yisrael would disappear on their own (rather than be destroyed by our enemies), but ”הנח להם לישראל מוטב יהיו שוגגין ואל יהיו מזידין”.
This version of hanach lahem makes no excuse for the accepted practice of the people. It unabashedly states that the practice being followed by the nation is erroneous, yet highlights the fact that it is preferable that people sin unintentionally than intentionally. This approach thus takes a more sociological angle, as it recognizes that the continuing practice of a custom is a powerful force against change, which the populace will likely resist. It is thus preferable not to force change upon them.
In order to appreciate when this version of הנח להם should be applied, we must first note that in general, it seems that the Torah does value attempting changing people’s errant behavior whenever possible. Rashi writes that talmidei chachamim who “would see them [other Jews] violating Torah laws… would reprimand them, curse them, slap them and tear out their hair [when necessary]” in order to return them to the proper path. Thus, it seems that earlier authorities did not view disobedience of Torah law as a matter to be left to the people. Rather, it was obvious that if the public violates a Torah law, we must do all we can to correct their ways. Rashi7 also comments that רואה את חבירו עובר מזיד נצטוו למחות ואפילו אין מקבל”” – “one who sees another sinning intentionally must reprimand him, even if the latter will not accept it.” Rashi reiterates his opinion in other places, and the Ri’az and many others also voice the same claim.
Moreover, the Ritva writes (in the context of the prohibition of pulling out hairs in distress over a death) that “it is not appropriate to apply [the notion] that it is better that they sin unintentionally [and not rebuke them], as they do this every day and they are doing it intentionally.” Thus, the Ritva also holds that the principle of hanach lahem cannot be applied everywhere, and in cases where a prohibition is violated intentionally, one should issue rebuke.
According to these commentaries, the Torah’s approach to rebuking others is as follows: Ideally, we should reprimand someone for their wrongdoings (which fulfills the mitzva of tochacha, rebuke, as described in Vayikra 19:19), as we have a clear responsibility to change their behavior and help direct them on the right path. We do this because we care about them and want them to do the right thing. But the principle of hanach lahem tells us that we must be cognizant that if our reprimand will cause sinners even greater damage and transform them into intentional sinners, it may be better to keep quiet and say nothing – הנח להם לישראל.
According to the Rema referenced above, this version of hanach lahem is the rationale applied in response to those eating chadash outside of Eretz Yisrael. The halacha is that it is forbidden, but since people simply will not listen when instructed to only eat yashan, warning them may transform them into intentional sinners, which is far worse than them violating the halacha b’shogeig.
Would the Rema apply this principle in our times as well? On one hand, one could argue that it should not apply nowadays for the following reason. Generally the halacha addresses those who have a basic interest in heeding its dictates – לא ברשיעי עסקינן (we are not dealing with those who are wicked). If so, the reason why the Rema suspects that people will not follow the laws of chadash is that in his time, there was a true shortage of staple grain foods that were considered yashan. But in our days, this concern of lack of food does not exist to the same extent as it once did, at least in communities with large amounts of religious Jews, where many yashan products are available. For this reason, perhaps the populace should be instructed to try to adhere to the rules of chadash, as it is quite possible that they will be able to comply with the strict halacha. On the other hand, one can argue that even today, it is an extremely significant change in lifestyle and eating habits to begin following the laws of chadash, and it is understandably difficult for most people to do so easily. In addition, in many places around the world there still is a lack of sufficient yashan products available for purchase, and the original basis for the Rema’s words may still apply.
In addition to the two primary versions of hanach lahem l’Yisrael mentioned by the Gemara, there are a few other versions of these phrases used by the Rishonim as well that may be applicable to our discussion. One such example is that if rebuking those not following a particular halacha could cause severe fighting or hatred between two parties, one should avoid reprimanding another in order to prevent any strife. The Tashbetz writes that “in retrospect, הנח להם לישראל and do not cause fighting because of this, as the Torah’s ways are pleasant and all its paths are towards peace.” A similar formulation is used by the Rashbash that one should allow those arguing to remain on whichever side they place themselves and one should not encourage them to change, because it might cause additional controversy. Indeed, the Chida writes “הנח להם לישראל, ואתה תתיצב מנגד סלע המחלוקת”, “allow Israel to do what they do, but you should place yourself against the rock of controversy.
If we apply this version of hanach lahem to the laws of chadash, we might argue that if encouraging strict adherence to the laws of chadash would lead to additional strife, then it is best not to do so. However, it would seem that since the issue is not currently causing controversy or serious dispute between the different sides, this consideration is not relevant.
Where There is No Definitive Halachic Ruling
Yet another manner in which the concept of “הנח להם לישראל” is occasionally used by the Rishonim is in connection with cases where the halacha is unclear and the prevalent custom is to act leniently, despite stringent rulings by some prominent opinions. For example, the Ramban employed this claim in one particular case where he writes concerning a stringent ruling of the Rambam that “in the end, this is a very loose halacha… one can argue that according to all [Talmudic] opinions, it should be permitted… and the community should be left to act [leniently], as there is no ruling and it is very loose in our times.”
Perhaps this type of argument of hanach lahem may be applied in the context of chadash as well. Some of the poskim who defend the minhag not to keep chadash outside of Eretz Yisrael write that one may rely on the opinion of the Ohr Zarua that the obligation of chadash outside Eretz Yisrael applies only miderabanan and not mide’oraita. The Ohr Zarua’s son, known as the Maharach Ohr Zarua, follows his father concerning this point, and a similar approach is taken by the Maharil. Therefore, they argue, in cases of uncertainty whether the grain is definitely chadash, one may be lenient. The Taz also suggests a defense of the lenient custom, claiming that the Gemara never ruled definitively in accordance with the stringent opinion regarding chadash in the Diaspora; therefore, in times of difficulty, where there is a shortage of food, it is permitted to eat chadash outside Eretz Yisrael. The Sha’agat Aryeh and Mishkenot Yaakov agree with this opinion as well. Thus, these poskim may essentially be employing this type of hanach lahem (without using this language directly), arguing that since the initial halacha is uncertain, one may defend the lenient custom in cases of difficulty or uncertainty.
Can this consideration of hanach lahem in a case of a “loose halacha,” apply to the lenient custom concerning chadash nowadays? On one hand, it is logical that it cannot necessarily be applied in every case. After all, as discussed, even the more lenient poskim seemingly permitted chadash only in cases of extreme need where otherwise there will not be sufficient food available or cases of uncertainty. Thus today, where at least in some places, yashan substitutes can be found and certain kinds of grain foods using spring wheat can be avoided (there are plenty of choices of foods in general on today’s market), this concern does not exist in nearly the same extreme manner. In addition, many foods today are almost definitely chadash (though not all) based on the type of wheat used and the time of harvest, so there may not be an issue of uncertainty either. Furthermore, the Mishneh Berura and Rav Eliezer Melamed, among others, recommend being strict if possible.
On the other hand, the custom of the majority of religious Jews in chutz la’aretz is still to be lenient, and the majority of major Kashrut organizations also take this position, based on the leniencies and uncertainties described here and in the shiur. Furthermore, as mentioned above, it is still not easy in many cases to follow the rules of chadash, and one’s family must make some sacrifices in order to accept this practice upon themselves. If so, perhaps such a perspective of hanach lahem of this type may still be applied.
We have seen that the allowance of “הנח להם לישראל” has been used by the Gemara and Rishonim in various ways. These include applying it as a defense of a widespread custom, a reason not to critique those acting improperly if they will not listen, and allowance of those being lenient to continue when encouraging change may lead to machloket or when the halacha was not clearly accepted by all opinions in the first place. We also saw that a number of Rishonim and Acharonim apply these principles to chadash, either explicitly or implicitly. But as discussed, due to the changing conditions of the economic market today, it is debatable whether these considerations can still be used and applied in a lenient fashion today. May we soon merit the day where the entire Jewish people can easily keep the rules of chadash, together with the bringing of the korban omer (the offering that permits the consumption of chadash) in the Beit HaMikdash.
 See the Tzurba MeRabanan shiur for more discussion of this subject.
 Mishna, Kiddushin 37a and the Gemara there
 Kiddushin 38a
 Sifrei, Parshat Shelach, Piska 107; Kiddushin 37a
 Menachot 84a
 Vayikra 23:14
 Kiddushin 36b
 Kiddushin 38a
 Menachot 68b
 Shulchan Aruch, Y.D. 293:1
 Rema, Y.D. 293:3
 Meiri, Pesachim 66a
 See Yerushalmi, Pe’ah 7:5, Ma’aser Sheini 5:2, and Yevamot 7:3.
Commentary to the Magen Avraham, siman 645.
 Beitza 30a
 There are certain types of de’oraita mitzvot, however, that one may be required to rebuke someone for (if they may listen), namely, those that are explicitly mentioned in the Torah (rather than being derived from allusions and the like). For further elaboration, see the sources quoted in note 21, infra.
 Responsa of Rashi, siman 20
 Rashi, Beitza 30a, s.v. הנח להם
 Riaz, Beitza 5a, 10
 Ritva, Makkot 20b
 Applying these principles and guidelines to our times concerning if, when, and how to rebuke a sinner is a complex subject. See Shulchan Aruch, O.C. 608, Mishna Berura, Bi’ur Halacha, and Piskei Teshuvot there, and Rav Moshe Weinberger, Jewish Outreach: Halakhic Perspectives,” Ktav 1990.
 A third consideration that perhaps the halacha is not definitive that chadash is entirely forbidden will be discussed further below.
 Responsa of the Tashbetz 2:109
 Responsa of the Rashbash, siman 329
 Birkei Yosef, O.C. 131
 Responsa of the Ramban, siman 41
 Siman 328
 Responsa of the Maharach Ohr Zarua, siman 217
 Likutei Maharil, Siman 26
 Y.D. 293:4
 Responsa Sha’agat Aryeh Hachadashot, Siman 2
 Responsa Mishkenot Yaakov, Y.D. 67
 Another more lenient approach is brought by Rabbeinu Baruch (cited in the Responsa of the Rosh 2:1) that chadash only applies in lands adjacent to Eretz Yisrael, but not anywhere else in the world. See Aruch Hashulchan, Y.D. 293:18-21, who discusses this approach at length.
 O.C. 489:45.
 Peninei Halacha, Kashrut vol.1, 1:5